By Sinéad Mercier
The Planning and Development Bill 2023 is set to pass tomorrow, Wednesday, 9 October. The legal and planning professions have criticised it for breaching EU and international law and for its potential to clog the planning and legal system. Attorney general Rossa Fanning has told government, in private correspondence, that parts of the bill give the appearance that government policy is “being led by developers". Less discussed however is one of the bill’s most egregious aspects – it’s a disaster for the climate and is something of an emblem of the state’s increasing attempts to sign away the country to further global exploitation.
Some of the bill's harshest critics aren’t your typical eco-warriors, including the Law Society of Ireland, the Bar Association, the United Nations Aarhus Compliance Committee and the Irish Planning Institute. Other legal experts and environmental organisations such as An Taisce have warned the bill is part of a growing European and British trend of intentionally rolling back democratic legal norms.
The bill will fastrack high carbon developments as strategic infrastructure, allowing these projects to bypass proper planning scrutiny: oil and gas pipelines and storage, liquified natural gas (LNG) terminals and communications infrastructure (like data centres). The minister will have a wide power to classify any development as strategic. It will also restrict public and NGO participation in the planning process, making it extremely difficult to stop or mitigate projects that contribute to climate chaos.
An unpleasant state philosophy
And things are already bad. In the lifetime of this government industry has increased its planning applications for fossil fuel infrastructure. These applications mainly comprise small-scale diesel and gas generators – but the scale is set to increase. If the bill is passed, new planning applications can be lodged for major, large-scale fossil fuel projects such as pipelines and terminals – locking the country into a climate crisis development path for the next 40 years.
The bill has escaped public criticism partly because of its size and complexity – it’s the third-largest bill in the history of the state – compounded by its rush through the Oireachtas. This lack of public understanding has been exacerbated by government’s promotion of ineffective policy documents to seemingly slow fossil fuel development while avoiding a more effective clearcut ban.
The government’s energy security strategy – Energy Security in Ireland to 2030 – has been touted as an effective tool to block LNG terminals in Ireland. This misplaced confidence was exposed when the High Court recently overturned a refusal of permission for the proposed Shannon LNG gas terminal in county Kerry. The court required An Bord Pleanála to make its decision based on law, not vague, non-binding policy.
Government has obfuscated with guesstimations on whether LNG terminals could be state-owned or state-led. Implied here was that planetary physics understands proprietorship and will see to it such projects have fewer emissions. It is not possible under EU or international energy law for a state to exclusively own or operate a fossil fuel terminal – and the term state-led is meaningless. And that’s before you get into the morality of constructing such infrastructure.
Despite all the climate policy pronouncements, expensive ad campaigns and new climate legislation, government is setting in train the largest amount of high carbon infrastructure ever built in the history of the state. The International Energy Agency has said that no fossil energy infrastructure can be built from 2021 onwards if we are to keep below 1.5 degrees warming. The planet has already increased by 1.2 degrees and is experiencing the resulting extreme weather events such as this summer’s forest fires across Europe and El Niño hurricanes in the US.
The bill exposes an unpleasant state philosophy. As Ireland can no longer fully rely on its low tax rate to attract international finance, it has intensified an existing parallel strategy: offering up the country’s infrastructure and landscape for global value extraction.
State environmental policy: duplicity
This planning bill is likely the starting point for a new Irish niche – the promotion of the country's legal, financial and planning system as a hub for high carbon activities that are restricted and mitigated elsewhere. With the same vigour government fought to avoid booking that €13 billion in Apple tax, it has started to oppose effective climate action at EU and UN level to signal its openness to unscrupulous investors.
This has included seeking the exclusion of high-polluting finance investors from the EU’s Corporate Sustainability Due Diligence legislation and interventions in climate cases taken by EU citizens. After Climate Case Ireland – when environmentalists successfully took the state to the Supreme Court to argue Ireland wasn’t doing enough to address the climate crisis – government both heralded new, supposedly, ambitious climate law, while passing legislation to prevent such a case being taken again. On 26 March the Green Party welcomed the passing of the Environmental Crime Directive at EU level, even though the Irish government had opted out of it. Government promotes its leadership on the international Fossil Fuel Non-Proliferation Treaty, while presiding over legislation that expressly prioritises fossil fuel projects. Government espouses solidarity with the global south on climate finance at international climate conferences, only to financially benefit from its destruction.
It’s duplicitous: government boasts about its excellence on climate and environment only to quietly undermine environmental efforts. The planning bill is its latest effort and has largely escaped public criticism partly because of its size and complexity – it’s the third-largest bill in the history of the state – compounded by its rush through the Oireachtas. The bill accelerates the worst development possible – fossil fuel infrastructure – at the worst time possible, this crisis point of global overheating.
All while the Green Party is in government.
A bailout for the fossil fuel industry
Why would Green Party members allow their party to leave such a legacy? What does green mean to a Green Party if it supports the embrace of high carbon infrastructure? The bill repeats the brutal mistakes of the Strategic Infrastructure Act 2006, which led to the Shell Corrib gas dispute and its litany of climate, environmental and human rights abuses. The act, passed in a context of the Mahon and Moriarty Tribunals, was subsequently found to be in breach of EU law: too little, too late for the Earth and the affected communities.
If disagreement over a bank bailout is worth collapsing a government over, surely the same standards apply to bailing out the fossil fuel industry. This government is in its final stages with an election announcement due any day. There is little to be lost and all to be gained from blocking this intolerable legislation.
The legislation will also be of serious concern to any future alternative government. While it will be set in motion by this Fine Gael-Fianna Fáil-Green Party government, any predecessor will have to deal with an onslaught of deeply unpopular – and deeply harmful – fossil fuel projects that will follow.
Sinéad Mercier is an occasional lecturer in planning and environmental law and PhD candidate in energy and climate law at the Sutherland School of Law, University College Dublin.
